December 5, 2012
SAMUEL MITRY, PLAINTIFF-RESPONDENT,
ANTHONY I. OKAFOR, M.D., AND EAST ORANGE GENERAL HOSPITAL, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5606-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically November 15, 2012 -
Before Judges Reisner and Yannotti.
Plaintiff Samuel Mitry appeals from orders entered by the Law Division on January 20, 2012, dismissing his complaint against defendants Anthony I. Okafor, M.D. (Okafor) and East Orange General Hospital (EOGH) with prejudice. For the reasons that follow, we reverse.
On July 7, 2011, plaintiff filed a complaint in which he alleged that in April 2011, Okafor treated him for a laceration on his forehead. Plaintiff claimed that when Okafor sutured the laceration, he did not exercise the degree of care or skill, nor possess the knowledge, ordinarily exercised by others of his profession. Plaintiff additionally claimed that Okafor was acting within the scope of his employment with EOGH when he treated him. Defendants filed answers denying liability.
In discovery, plaintiff provided answers to interrogatories, in which he asserted that on April 8, 2011, Okafor treated him in EOGH's emergency room for a laceration across his forehead. Plaintiff stated that Okafor "supposedly cleaned the wound and then proceeded to use thread and needle to stitch the wound in a very poor quality."
Plaintiff stated that he is permanently disfigured as a result of Okafor's treatment of the wound, and he was not able to have reconstructive surgery due to the swelling caused by Okafor's failure to clean the wound thoroughly. Plaintiff also stated that his face was "deformed due to the infection" that resulted from the treatment. He said he was out of work for a week as a result of Okafor's treatment.
Plaintiff also provided defendants with an affidavit of merit, dated September 27, 2011, from Ray Silen, M.D., F.A.C.S. (Silen). In his affidavit, Silen stated that his specialty is surgery, including "urgent surgical care," and he is board certified in surgery. Silen said he had reviewed EOGH's emergency report, and the records of plaintiff's subsequent treatment. Silen opined that in his professional opinion, there was a reasonable probability that the treatment and care provided by defendants and the skill or knowledge exercised by them, "fell outside the accepted customs, standards and/or practices of surgeons and medical providers."
On December 30, 2011, Okafor filed a motion to dismiss the claims against him because plaintiff had not complied with the affidavit of merit statute, N.J.S.A. 2A:53A-27. Okafor asserted that he is board certified in internal medicine and in emergency medicine, and he had treated plaintiff in EOGH's emergency room. He argued that Silen's affidavit did not comply with N.J.S.A. 2A:53A-27 because it was not provided by a board-certified emergency room physician.
On January 10, 2012, EOGH filed a cross-motion to dismiss plaintiff's complaint. EOGH noted that the claims against it were based on a theory of respondeat superior. EOGH also argued that Silen's affidavit did not comply with N.J.S.A. 2A:53A-27, for the reasons advanced by Okafor.
In response to the motions, plaintiff's counsel filed a certification in which he stated that he had "no problem" with the court dismissing the complaint, but argued that the court should do so without prejudice. Plaintiff's counsel agreed that the affidavit of merit must be furnished by an emergency room physician because plaintiff's claim was against an emergency room doctor.
The trial court decided the motions without oral argument. The court entered orders dated January 20, 2012, granting the motions and dismissing the complaint with prejudice. This appeal followed.
Plaintiff argues that: (1) an affidavit of merit was not required here because this is a "common knowledge" case; (2) Silen's affidavit met the requirements of the affidavit of merit statute; and (3) the complaint should not have been dismissed with prejudice because he substantially complied with the affidavit of merit statute.
We turn first to plaintiff's contention that he was not required by N.J.S.A. 2A:53A-27 to provide an affidavit of merit because his claims fall under the "common knowledge" exception to the affidavit of merit statute. We note that plaintiff did not argue in the trial court that his claims fall within this exception to the affidavit of merit requirement.
Defendants maintain that plaintiff should not be permitted to raise this issue for the first time on appeal. See Neider v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973) (stating that an appellate court may decline to entertain issues not raised before the trial court). We do not agree. We are satisfied that plaintiff is not precluded from arguing that the trial court should not have dismissed his complaint with prejudice, even though the basis for the contention differs from the arguments that plaintiff advanced in the trial court.
N.J.S.A. 2A:53A-27 states that a plaintiff pursuing a claim for injuries "resulting from an alleged act of malpractice or negligence of a licensed person in his profession or occupation," must provide an affidavit by an appropriately-licensed person who attests under oath "that there exists a reasonable probability that the care, skill or knowledge" exercised by the defendant deviated from accepted professional standards.
The affidavit must be furnished within 60 days of the filing of defendant's answer, but the time may be extended up to 120 days for good cause. Ibid. If the plaintiff does not file the affidavit within the required time, the complaint is dismissed with prejudice unless plaintiff's failure to file the affidavit was due to extraordinary circumstances. Ibid.
A plaintiff need not, however, provide an affidavit of merit in a so-called common knowledge case. Hubbard v. Reed, 168 N.J. 387, 394 (2001). A common knowledge case is one in which an expert is not needed to demonstrate that a defendant breached a duty of care. The doctrine applies where "'jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine defendant's negligence without the benefit of the specialized knowledge of experts.'" [Ibid. (quoting Estate of Chin v. St.
Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)).]
The common knowledge doctrine is an exception to the general rule that professional negligence must be established by expert testimony. Sanzari v. Rosenfeld, 3 N.J. 128, 141 (1961).
The doctrine has been applied when a dentist pulled the wrong tooth. Hubbard, supra, 168 N.J. at 396. See also Palanque v. Lambert-Wooley, 168 N.J. 398, 407 (2001) (applying common knowledge doctrine to misdiagnosis resulting from misreading of numbers on a lab chart); Bender v. Walgreen Eastern Co., Inc., 399 N.J. Super. 584, 591-92 (App. Div. 2008) (concluding that affidavit of merit not required to claim against pharmacist who filled prescription with wrong drug).
We are satisfied that the common knowledge doctrine does not apply in this case. Here, plaintiff claims that Okafor deviated from accepted standards of medical care by suturing his laceration without properly cleaning the wound. We are convinced that the jurors would not, based on their own common knowledge and experience, be capable of determining the standard of care applicable to such a claim.
We note that in his complaint, plaintiff alleged that Okafor had not cleaned his wound before he closed it. In his answers to interrogations, plaintiff stated that Okafor had not cleaned the wound "thoroughly." We cannot say that the manner in which a physician should clean a wound before suturing it is a matter of common knowledge. We therefore conclude that an affidavit of merit is required in this case.
Plaintiff also argues that Silen's affidavit complied with N.J.S.A. 2A:53A-27. Among other things, N.J.S.A. 2A:53A-27 provides that in a medical malpractice action, "the person executing the affidavit shall meet the requirements" of N.J.S.A. 2A:53A-41(a), which states:
If the party against whom or on behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties [ABMS] or the American Osteopathic Association [AOA] and the care or treatment at issue involves that specialty or subspecialty recognized by the [ABMS] or the [AOA], the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty of subspecialty, recognized by the [ABMS] or [AOA], as the party against whom or on whose behalf the testimony is offered and if the person against whom or on whose behalf the testimony is offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the [ABMS] or the [AOA], the expert witness shall be:
(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or
(2) a specialist or subspecialist recognized by the [ABMS] or the [AOA] . . . .
We are convinced that Silen's affidavit met the requirements of N.J.S.A. 2A:53A-27. As we stated previously, Okafor is board certified in internal medicine and emergency medicine. However, defendants have not established that the treatment at issue involves either specialty. Indeed, defendants have not shown that a physician like Silen, who is board-certified in surgery and specializes in urgent care, is not qualified to opine as to the standard of care that applies here.
In view of our decision, we need not consider plaintiff's argument that dismissal of his complaint was not warranted because he substantially complied with the affidavit of merit statute.
Reversed and remanded for further proceedings in conformity with this opinion.
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